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United States v. Johnson

United States District Court, D. Oregon

April 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL STEPHEN JOHNSON, Defendant.

          ORDER RE: PRE-TRIAL CONFERENCE & MOTIONS

          Michael J. McShane United States District Judge

         Before this court are parties' pre-trial motions in limine, notices of evidence and expert witnesses, and other pre-trial motions. The court has reviewed all of the submitted written briefing and heard oral arguments on the 23rd and 24th of April 2018, and makes the following findings and rulings:

         I. Motions in Limine

         A. Government's “omnibus” Motions in limine (ECF No. 151)

         1. Motion to limit references by the defense to the age of consent in Cambodia: Defense does not contest the issue and no order is necessary

         2. Motion to limit references by the defense to Plea negotiations that might have occurred: Defense does not contest the issue and no order is necessary.

         3. Motion to limit references by the defense to other charges or purported motive of the Government: The defense does not intend to comment on prosecutor's motive for bringing charges or suggest vindictive prosecution. The defense agrees that they are not seeking to admit into evidence the charges of or the investigation into allegations of child sex abuse by Mr. Johnson in the United States (Lincoln and Yamhill county charges).

         4. Motion to limit references by the defense to offers to stipulate: Defense does not contest the issue and no order is necessary.

         5. Motion regarding undisclosed defense exhibits: Defense is ordered to disclose exhibits with the exception of impeachment exhibits.

         6. Motion to limit references to potential punishment or defendant's personal background: The motion is granted with regard to references in front of the jury as to potential punishment. Mr. Johnson may, however, introduce material, non-cumulative personal background that is relevant to his motivation for traveling and working in Cambodia.

         7. Motion to limit references to defendant's health: Defense does not contest the issue and no order is necessary.

         8. Motion to limit introduction of specific Instance Character evidence: Defendant may not introduce specific instances of conduct to prove character (for example, his character for sexual propriety around children or honesty), but defendant may offer general reputation and opinion evidence from others who can testify as to his character for sexual propriety around children or honesty. This, of course, opens those witnesses to cross on specific allegations of sexual misconduct in Cambodia and in the United States and may open the door to cross based on the photos found on his phone. Defense may also offer material, non-cumulative testimony regarding the kind of work that Mr. Johnson did in Cambodia, including missionary work and charitable work, as it relates to his motivation for traveling to Cambodia and setting up Hope Transition Center.

         9. Motion to limit references of Administrative Discipline: The court will defer any ruling on this matter until such a time that the defense seeks to introduce.

         10. Motion to exclude alleged victims sexual behavior evidence: Conditionally granted at this time. Defense may raise issue outside presence of the jury at a later time if they seek to introduce such evidence.

         11. Motion to exclude exculpatory hearsay: The court assumes that the parties will not seek to introduce hearsay, exculpatory or otherwise.

         12. Motion to limit reference to a lack of domestic criminal convictions: In general, the defense may not comment on the fact that the defendant is “crime free” and has never been convicted of a crime of sexual abuse. The defense may not do so here.

         B. Governments motion to admit “other act” evidence as outlined in the government's Notice of Evidence under FRE 404(b), 413, and 414 (ECF No. 152)

         1. Defense request for a Bill of Particulars (Response to Govt.'s Motion in limine, pg. 2; ECF No. 154) arguing that the evidence should be limited to the specific act against the specific victim that gives rise to the individual counts of the superseding indictment. A decision to order the prosecution to comply with a bill of particulars is left to the discretion of the trial court. United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983). It is particularly appropriate in those cases in which the discovery is either incomplete or so vast that a defendant cannot be expected to adequately understand the nature of the charges against him and consequently, cannot adequately prepare a defense. Id. Here, the indictment and the discovery set forth the time frame of the sexual abuse, the specific victims, and the nature of the alleged sexual misconduct. Mr. Johnson has framed a defense that none of the abuse occurred. The defense request for a Bill of Particulars is denied. The court will entertain a motion to elect following the government's case in chief and will instruct the jury appropriately regarding the need to reach a unanimous decision regarding each particular allegation.

         In addition, counts 7 and 8 do not require a specific victim. Count 7 and 8 are charges of crimes that are inchoate in nature, criminalizing the act of travel with the intent of engaging in illicit sexual conduct. There will be a unanimity instruction given directing the jury that they must agree as to a particular travel event.

         2. With regard to “other act” evidence specifically, the government seeks to introduce the following evidence under federal rules of evidence 404(b), 413, or 414:

(1) evidence of Mr. Johnson's sexual abuse of children in Cambodia outside of the specific instances alleged in the indictment; (2) evidence of Mr. Johnson's sexual abuse of children in the United States; (3) testimony from adults who either witnessed Mr. Johnson's behavior or in whom his victims confided; (4) evidence of Mr. Johnson's facilitation of his crimes through frightening, intimidating, grooming, or bribing his victims; (5) evidence of potential child pornography recovered from Mr. Johnson's digital media; and (6) evidence of Mr. Johnson's efforts to obstruct justice by bribing or tampering with victims and witnesses.
a. The first motion is a motion to allow the introduction of evidence that Mr. Johnson engaged in multiple sexual encounters in Cambodia with the alleged victims, as well as with other children in Cambodia who are unnamed in the indictment but are similarly situated to the alleged victims. The evidence is admissible under FRE 404(b) for purposes of showing Mr. Johnson's intent or motive for traveling to Cambodia, as well as under FRE 413 and FRE 414 in that they are evidence of sexual assault and sexual molestation. The acts go directly toward a material issue in the case; the acts are not remote in time; there is sufficient evidence to support a finding that the acts were committed; the acts are similar in nature to the offense charged. The highly probative nature of the evidence is not outweighed by its prejudice.
b. The second motion is to allow evidence of Mr. Johnson's sexual abuse of children in the United States. The government intends to offer the testimony of two of Mr. Johnson's nephews, Ben and Kevin Jaeger. They would testify that they were sexually abused as children by Mr. Johnson. The government claims this testimony is relevant for the following reasons: his identity as the sexual abuser of children (this is the definition of propensity evidence), his modus operendi (this is not something that has adequately been established by the record), and absence of mistake or lack of accident in abusing the boys in Cambodia.
Here, the probative value of evidence that Mr. Johnson may have abused boys in the distant past in the United States is outweighed by its prejudicial impact. With the defense now agreeing it will not link the prosecution of Mr. Johnson to the investigation in Cambodia, the sole purpose of the evidence appears goes toward the propensity of Mr. Johnson to engage in such acts. As discussed on the record, the acts are not similar in nature to the acts alleged to have been committed in Cambodia and they are distant in time.
Because defense withdraws their defense that events in the United States contaminated the investigation in Cambodia (Response to Government's Motions in Limine, pg.'s 3, 7, & 12; ECF No. 154) the government will not need to introduce such rebuttal evidence. The fact that Mr. Johnson had an outstanding warrant in Oregon is relevant to the genesis of his arrest in Cambodia and the subsequent investigation into child sex abuse there. The basis for the warrant is immaterial.
c. The third motion is a motion to allow testimony from other adults who witnessed behavior or who are privy to statements of victims. This evidence is relevant to lack of mistake and opportunity. The observations of certain behavior around children by witnesses rebut the defense that Mr. Johnson's accusers were biased and motivated to accuse Mr. Johnson for other reasons. The observations support evidence of grooming. Statements made by victims to others are ...

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